Child Custody 101

There are only two types of custody: legal and physical. Understanding the difference is crucial.

—Dear Mr. Dad: After three children and 16 years of marriage, my wife and I are splitting up. We’re getting along pretty well right now and are trying to figure out how to divide custody in a fair way. What are our options?

A: Start by taking a look at last week’s column on co-parenting plans. Among the most common questions I get from divorcing people are, “Where are the kids going to live?” and “With whom, and how much time will they be able to spend with each parent?” While the answers to both questions are critical, an equitable custody schedule is only one component of your overall post-marriage life.

As far as the law is concerned, there are only two types of custody: legal and physical. Everything else is details. The parent with legal custody is the one has the right—and responsibility—to make decisions about anything that affects the children’s health, education, and welfare. The parent with physical custody is the one with whom the child lives. Unfortunately, too many people (especially fathers) don’t understand the difference between legal and physical custody and, as a result, they end up with an unfair settlement. Within those two broad categories, there are a variety of different alternatives. Here are the most common:

• Sole.

One parent has exclusive physical and legal custody of the children. The non-custodial parent will have limited access to the children (also called “visitation”).

• Joint.

One might think that “joint” is a synonym for “50/50” or “equal.” In some jurisdictions, that’s true, but in many others, children spend more than half their time with one parent (typically the mother), who makes most if not all major decisions. It’s essential that you and your ex clearly define “joint.” Ideally, your kids will split their time equally between your place and your ex’s, and the two of you will make all major decisions affecting the kids together.

• Alternating.

Could be a week with you, then a week with mom. Or a 2-2-5-5-schedule, where Parent 1 has every Monday and Tuesday, Parent 2 has every Wednesday and Thursday, and they alternate Friday-Sunday. Sounds complicated, but I’ve tried both of these, and they can work well.

• Bird’s nest.

A nice variation on joint custody (which I’ve also tried), where the kids stay put and you and your ex move in and out of the house. While bird’s nest provides consistency for the kids, it can be expensive, because the adults will have to maintain another residence when they’re not in the house. It also requires a lot of cooperation and clear ground rules (like no sex in the shared bed).

• Serial custody.

Parent One has primary legal and or physical custody for a certain number of years; then Parent Two takes over. This can be successful if you decide that you want your teens to live with the same-sex parent. But I’d stay away from it, since most experts agree that in normal situations, children need an ongoing relationship with both parents, not just one at a time.

• Third-party custody.

If a judge decides that both you and your ex are incompetent, unfit, or pose a danger to the child(ren), custody may be awarded to grandparents, aunts, uncles, or some other family member.

• Split.

One or more of the children live with you, the other(s) with your ex. Consider this an absolute last resort. Divorce, as we all know, is especially brutal on kids, and separating them from the only other people in the world who know exactly what they’re going through is just plain cruel. You’ll also need to come up with a schedule that gives the parents time with the children they aren’t living with.

• Make up your own.

Just about anything’s possible: joint legal custody but sole physical, sole legal and 50/50 physical, and so on.

About Armin Brott

Armin Brott is a pioneer in the field of fatherhood and has been building better fathers for more than a decade. As the author of eight bestselling books on fatherhood, he’s helped millions of men around the world become the fathers they want to be—and that their children need them to be. You can connect with Armin on his WEBSITE